Thomas (Tom) O’Connell is a Shareholder at Buchalter APC, where he serves as Chair of Litigation for the firm’s San Diego office, Chair of the firm’s Franchise Law Practice, and Chair of the firm’s e-Discovery Practice.

Mr. O’Connell’s litigation experience broadly encompasses all aspects and stages of litigation in negotiations, arbitrations, courts, and appellate courts throughout the country. While Mr. O’Connell’s success in defending employment litigation on behalf of entities ranging from public entities to multi-national corporations is most notable, his clients also regularly call on him to aggressively defend and/or resolutely pursue complex business-to-business litigation and franchise-related litigation.

In addition to the above, Mr. O’Connell is widely regarded as an industry authority on a variety of franchise compliance issues. Mr. O’Connell takes the same proactive, business-minded approach he uses during litigation when he drafts various franchise documents—including franchise disclosure documents, single-unit franchise agreements, multi-unit franchise agreements, area development agreements, and master franchise agreements—and provides compliance advice for regional, national, and multi-national franchisors and franchisees.

Bar Admissions

• California
• District of Columbia
• Maryland
• Virginia

Significant Accomplishments
<p><u>Franchise Litigation Representative Matters</u></p><ul><li>Successfully defended franchisor against claims for wrongful termination and fraud seeking more than $10 million.</li><li>Successfully defended franchisor against claims that it provided unsubstantiated financial performance representations in Franchise Disclosure Document and seeking rescission of the franchise agreement.</li><li>Successfully defended franchisor against claims that it failed to provide specified training and for wrongful termination after franchisee failed performance improvement plan.</li><li>Successfully defended franchisor in breach of contract action where franchisee claimed that franchisor allowed another franchisee to encroach on its territory.</li><li>Successfully defended franchisor against claim that it wrongfully refused to renew franchise agreement.</li><li>Successfully defended franchisor against claims that it was accepting undisclosed rebates from vendors.</li><li>Successfully defended franchisee against a breach of contract action brought by a franchisor and successfully pursued a counterclaim for wrongful termination, fraud, and rescission resulting in a finding in the franchisee’s favor of close to $1 million.</li><li>Successfully pursued claim by franchisee for wrongful termination against franchisor and defended against counterclaim for breach of covenant not to compete.</li><li><em>DirecTV, LLC et al. v. Marlon Hall</em>: Served as lead counsel on behalf of the American Hotel & Lodging Association, Asian American Hotel Owners Association, Coalition of Franchisee Associations, International Franchise Association and Restaurant Law Center in a matter brought before the United States Supreme Court regarding potential joint employer liability. A copy of their Amicus Curiae brief can be found <span style="text-decoration: underline;"><a href="https://www.buchalter.com/wp-content/uploads/2022/07/Directv-Hall.pdf">here</a></span>.</li><li><em>McDonald’s USA, LLC</em>, a joint employer, et al. and Fast Food Workers Committee, et al.: Successfully defended McDonald’s California franchisees involved in a multi-state action—the “largest case ever adjudicated” by the National Labor Relations Board—where a national labor union alleged that McDonald’s franchisees were engaged in a variety of unlawful labor practices and were all joint employers with McDonald’s USA, LLC. A copy of the National Labor Relations Board’s published decision related to the resolution of this case can be found <span style="text-decoration: underline;"><a href="https://www.buchalter.com/wp-content/uploads/2022/07/McDonalds.pdf">here</a></span>. The United States Court of Appeals for the District of Columbia’s decision upholding National Labor Relations Board’s decision can be found <a href="https://www.buchalter.com/wp-content/uploads/2023/05/McDonalds-Opinion-1.pdf"><u>here</u></a>.</li></ul><p><u>Franchise Advice Representative Matters</u></p><ul><li>Registered and renewed local, regional, national, and multi-national franchisors in many industries.</li><li>Led trainings, workshops, and audits for franchisors and multi-unit franchisees related to joint employment and vicarious liability avoidance.</li><li>Acted as outside general counsel to emerging and established franchisors as well as multi-unit franchisees providing compliance, labor and employment, and strategic growth advice.</li><li>Provided due diligence advice and analysis to franchisors, franchisees, and lenders as part of mergers and acquisitions.</li></ul><p><u>Labor & Employment Litigation Representative Matters</u></p><ul><li>Successfully defended an entity against claims brought by a former employee alleging whistleblowing and retaliation, seeking more than $6 million.</li><li>Successfully defended an entity against claims brought by multiple former employees alleging “me too” style sexual harassment and hostile work environment seeking more than $10 million in damages.</li><li>Successfully defended a company against claims of age and race discrimination brought by multiple employees who were laid off and seeking more than $15 million in damages.</li><li>Successfully defended an entity against claims brought by a former officer alleging whistleblowing and retaliation, seeking more than $4 million.</li><li>Successfully defended a company against multiple 8(a)(3) and 8(a)(1) claims brought by multiple employees who were terminated close in time to union activities.</li><li>Successfully defended a company against multiple persons claiming to be employees of the entity as opposed to independent contractors.</li><li>Successfully defended a company and its ownership against a $15 million breach of contract claim and wrongful termination claim by an employee claiming ownership of company intellectual property.</li><li>Successfully defended a company against a $10 million breach of non-competition claim and successfully pursued a $10 million counter-claim in an action regarding the parties’ competing responses to a government entity’s request for proposal.</li><li>Successfully defended a company against claims brought by multiple employees against a supervisor and the owner of a company alleging a panoply of hostile work environment claims seeking more than $20 million in damages.</li><li><em>Jesse Griego v</em>. <em>City of Barstow</em>: Successfully appealed a trial court’s decision granting an employee’s petition for writ of administrative mandate. Therein, the Court of Appeal issued a precedent-setting decision finding that even where a part of an employer’s rationale for its decision to terminate an employee is not sustained, if the remainder of the employer’s rationale is sustained and would leave no real doubt that the employer would terminate the employee, the termination should stand and not be remanded to the employer. A copy of the Court of Appeals’ published decision can be found <span style="text-decoration: underline;"><a href="https://www.buchalter.com/wp-content/uploads/2023/05/Griego-Opinion.pdf">here</a>.</span></li><li><em>Maywood Police Officers Association, et al. v. City of Maywood</em>: Successfully defended an appeal brought by the City of Maywood Police Officers Association of the City’s decision to void its Memorandum of Understanding and disband its police department in the wake of a financial crisis. A copy of the Court of Appeals’ unpublished decision can be found <span style="text-decoration: underline;"><a href="https://www.buchalter.com/wp-content/uploads/2022/07/Maywood.pdf">here</a>.</span></li><li><em>Justin Vincent v. City of California City</em>: Successfully defended the City of California City against a $5 million claim by a former department head for allegations of wrongful termination, discrimination, retaliation and violation of the department head’s First Amendment rights. A copy of the Federal District Court’s published decision can be found <span style="text-decoration: underline;"><a href="https://www.buchalter.com/wp-content/uploads/2022/07/California-City-Vincent.pdf">here</a>.</span></li></ul><p><u>Labor & Employment Advice Representative Matters</u></p><ul><li>Acted as outside employment counsel for both private and public entities.</li><li>Led trainings, workshops, and employment practice audits for both private and public entities in multiple jurisdictions.</li><li>Restructured and redrafted human resources policies and statutes for the State of California.</li><li>Provided advice related to negotiations with public and private labor units.</li></ul><p><u>Complex Litigation Representative Matters</u></p><ul><li>Successfully represented a minority shareholder of a national developer against a fellow shareholder in an action seeking $50 million for breach of contract, breach of fiduciary duty, and rescission of the sale of a $450 million piece of real estate.</li><li><em>E-Commerce Lighting, Inc. v. E-Commerce Trade LLC, et al.</em>: Successfully appealed a trial court’s decision to eliminate a setoff in an arbitrator’s award. A copy of the Court of Appeal’s published decision can be found <a href="https://www.buchalter.com/wp-content/uploads/2023/05/E-Commerce-Lighting-Opinion.pdf"><u>here</u></a>.</li><li><em>Riverside County Transportation Commission v. Southern California Gas Company</em>: Successfully defended the Riverside County Transportation Commission in a precedent-setting action against Southern California Gas Company in a claim for approximately $1 million and successfully defended against the Gas Company’s counter-claim for $1.5 million. A copy of the Court of Appeal’s published decision can be found <span style="text-decoration: underline;"><a href="https://www.buchalter.com/wp-content/uploads/2022/07/SoCalGas-Opinion-FILED-8-24-2020.pdf">here</a>.</span></li></ul>

• National Labor Relations Board Publishes Final Rule Significantly Expanding Definition of Joint Employer
• The Slow Down of the FAST Act: Surprise Deal Reached Which Ends Statutory Joint Employee Threat Until 2028 in California
• California Assembly Appropriations Committee Passes AB5
• Patel v. 7-Eleven, Inc.: Federal Court Finds that FTC Franchise Rule Preempts State ABC Independent Contractor Test
• A.B. v. Hilton Worldwide Holdings Inc.: A Must Read for Hotel Franchisors and Franchisees
• T.A.W. Performance, LLC v. Brembo, S.p.A.: Court of Appeal Provides Alternative Approach to Analyzing Jurisdictional Disputes by a Purported California Franchisee
• Esguerra-Aguilar, Inc. v. Shapes Franchising, LLC: Court Finds Incorporation of Arbitration Rules Allows Arbitrator to Determine Arbitrability of Dispute
• BP Products North America Inc. v. Petroleum: Yet Another Lesson in the Need for Clarity for Potential Costs for Franchisees
• National Labor Relations Board Follows Department of Labor’s Lead and Publishes Franchisor Friendly Joint Employer Rule
• Department of Labor Publishes Franchise Friendly Joint-Employer Rule
• Handel’s Enterprises, Inc. v. Schulenburg: In Spite of a “Willful” Violation of the CFIL, a Federal Court Finds a Franchisee is not Entitled to Rescission
• Handoush v. Lease Finance Group, LLC: Predispute Waivers put a Forum Selection Clause at Issue Again
• Governor Signs AB5 into Law and Complicates California’s Independent Contractor Analysis
• California Assembly Denies Procedural Vote Then Votes To Send AB5 To Governor’s Desk
• California Senate Passes AB5
• AB5 Amendments Incentivize Union Bargaining and Expands Rights of Action
• California Senate Amends AB5 to Take Certain Industries Off The Hook Of The Dynamex “ABC” Test
• California Senate Appropriations Committee Passes AB5, Again, Along Party Lines
• AB5 Amendments Adds Industry Carve-Outs and Shifting Criteria for Independent Contractor Classification
• California Senate Labor, Public Employment and Retirement Committee Passes AB5 Without Amendment
• Campbell v. FAF, Inc. et al.: A Costly Lesson Related To Notice Pleading The Existence of a Franchise
• California Assembly Amendment Restyles AB5, but Narrowly Misses Franchise Exemption in Trimming the “ABC” Test
• California Assembly Appropriations Committee Makes Minor Changes to AB5 Related to Unemployment Insurance
• California Assembly’ Labor and Employment Committee Passes AB5 on Party Lines
• California Assembly Passes AB5
• Salazar v. McDonald’s Corp: A Much Needed Win for the Franchise Industry
• Department of Labor Introduces Proposed Rulemaking on Joint Employer Status Under FLSA Date
• California Assembly Proposes Carve Out of Certain Industries From “ABC” Test Through AB5 Amendment
• United Studios of Self Defense v. Rinehart: Lessons in Legal Jiu-Jitsu by a Franchisor Under Attack
• NLRB’s Ruling on Independent Contractor Status and Implications for Labor Relations and the Franchise Industry
• California Assembly Introduces Bill To Codify Dynamex “ABC” Test
• Staying in the FAST Lane: An Overview of New 2023 Employment Laws for California Franchisors and Franchisees
• NLRB Dismisses Charges Against Starbucks in La Quinta, California Alleging Interference with Employee Collective Bargaining Rights
• DOL’s Joint Employer Rule Struck Down by Federal Court
• Best in Law: AB5 and Franchisees
• The Joint-Employer Dance
• Best in Law: Is it Time to Franchise Your Business
• Best in Law: Joint Employer Standards Pose Threat to Businesses
• Best In law: New Joint Employer Standards Pose Threat to Business